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8 - Joint Satisfaction Thesis III

Exclusionary and Non-exclusionary Effects

from Part IV - Military Necessity in Its Juridical Context

Published online by Cambridge University Press:  02 May 2020

Nobuo Hayashi
Nobuo Hayashi
Affiliation:
United Nations Interregional Crime and Justice Research Institute
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Summary

Chapter 8 deals with exclusion. The inevitable conflict thesis errs when it asserts that all positive IHL rules, including those that are unqualified, involve military necessity and humanity in their norm-creation. This chapter shows, rather, that IHL norm-creation does not always involve the military necessity–humanity interplay. Ill-advisedly, the inevitable conflict thesis also holds that neither military necessity nor humanity may be invoked in defence of deviations from unqualified IHL rules. While Kriegsräson and its variations are properly excluded, humanitarian imperatives may justify non-compliance with IHL and/or render technical compliance unlawful.

Keywords

Improper use of enemy uniformscompulsory labour of officer POWsKriegsräsonself-preservationmisuse of the Red Cross emblemIHL as derogations from human rightscapture rather than killPOW repatriationhumanity demanding IHL non-compliancehumanity condemning IHL compliance.
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Military Necessity
The Art, Morality and Law of War
 , pp. 203 - 260
Publisher: Cambridge University Press
Print publication year: 2020

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